Information Note on the Court’s case-law 180
December 2014
Dubská and Krejzová v. the Czech Republic - 28859/11 and 28473/12
Judgment 11.12.2014 [Section V]
Article 8
Article 8-1
Respect for private life
Legislation preventing health professionals assisting with home births: no violation
[This case was referred to the Grand Chamber on 1 June 2015]
Facts – The applicants wished to give birth at home, but under Czech law health professionals are prohibited from assisting with home births. The first applicant eventually gave birth to her child alone at home while the second applicant delivered her child in a maternity hospital. The Constitutional Court dismissed the first applicant’s complaint for failure to exhaust the available remedies. It nevertheless expressed doubts as to the compliance of the relevant Czech legislation with Article 8 of the Convention.
In their applications to the European Court, the applicants complained of a violation of Article 8 as mothers had no choice but to give birth in a hospital if they wished to be assisted by a health professional.
Law – Article 8: Giving birth was a particularly intimate aspect of a mother’s private life encompassing issues of physical and psychological integrity, medical intervention, reproductive health and the protection of health-related information. Decisions regarding the circumstances of giving birth, including the choice of the place of birth, therefore fell within the scope of the mother’s private life for the purposes of Article 8.
The fact that it was impossible for the applicants to be assisted by midwives when giving birth at home had amounted to interference with their right to respect for their private lives. That interference was in accordance with law as, although it was not entirely clear, the legislation had nevertheless enabled the applicants to foresee with a degree that was reasonable in the circumstances that the assistance of a health professional at a home birth was not permitted by law. The interference had served a legitimate aim as it was designed to protect the health and safety of both the newborn child and, at least indirectly, the mother.
As to whether the interference had been necessary in a democratic society, the respondent State was entitled to a wide margin of appreciation on account of the need for an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births, the need for strong State involvement because of newborn children’s vulnerability and dependence on others, the lack of any clear common ground among the member States on the question of home births and, lastly, general social and economic policy considerations, such as the allocation of resources to set up an adequate emergency system for home births.
While the situation in question had a serious impact on the applicants’ freedom of choice, the Government had focused primarily on the legitimate aim of protecting the best interests of the child. Depending on their nature and seriousness, the child’s interests could override those of the parent, who was not entitled under Article 8 to take measures that would harm the child’s health and development. While there was generally no conflict of interest between mother and child, certain choices as to the place, circumstances or method of delivery could give rise to increased risks to the health and safety of the newborn child as the figures for perinatal and neonatal deaths attested.
Although a majority of the research studies before the Court on the safety of home births indicated that there was no increased risk compared to hospital births, this was true only if certain conditions were fulfilled, namely that the birth was low-risk, attended by a qualified midwife and close to a hospital in the event of an emergency. Thus, situations such as that in the Czech Republic, where health professionals were not allowed to assist mothers giving birth at home and where there was no special emergency aid available, actually increased the risk to the life and health of mother and newborn. At the same time, however, the Government had argued that the risk for newborn children was higher in respect of home births and it was true that even where a pregnancy seemed to be without complications, unexpected difficulties requiring specialised medical intervention could arise during delivery. In these circumstances, the mothers concerned, including the applicants, could not be said to have had to bear a disproportionate and excessive burden. Accordingly, in adopting and applying the policy relating to home births, the authorities had not exceeded the wide margin of appreciation afforded to them or upset the requisite fair balance between the competing interests.
Notwithstanding this finding, the Czech authorities should keep the relevant provisions under constant review, taking into account medical, scientific and legal developments.
Conclusion: no violation (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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